Court makes drone legal memo public

6/23/14 1:12 PM EDT

A U.S. government legal opinion used to justify a drone attack that killed American citizens and alleged Al Qaeda in the Arabian Peninsula leader Anwar al-Awlaki contains little analysis of the constitutional issues at stake and dwells primarily on dismissing arguments that carrying out such an attack might constitute murder under U.S. criminal law.

The 41-page opinion from the Justice Department's Office of Legal Counsel was made public in redacted form Monday by the U.S. Court of Appeals for the 2nd Circuit in response to Freedom of Information Act lawsuits brought by The New York Times and the American Civil Liberties Union.

"We do not believe that al-Aulaqi's U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal action under the facts represented to us by DoD, the CIA and the Intelligence Community," acting Assistant Attorney General David Barron wrote in the July 16, 2010, memo to Attorney General Eric Holder. "On the facts represented to us, a decision-maker could reasonably decide that the threat posed by al-Aulaqi's activities to United States persons is 'continued' and 'imminent...' Both agencies have represented that they intend to capture rather than target al-Aulaqi if feasible; yet we also understand that an operation by either agency to capture al-Aulaqi in Yemen would be infeasible at this time."

The opinion cites the U.S. Supreme Court's 2004 decision that an American citizen captured in Afghanistan, Yasser Hamdi, had the right to challenge his detention under the laws of war, as well as a couple of other decisions allowing police to use deadly force against a fleeing suspect wanted for a felony. Barron also cites a 2006 Israeli Supreme Court decision about the feasibility of arrests in lieu of the use of lethal force.

One lawmaker who pressed for disclosure of the memo, Sen. Ron Wyden (D-Ore.), said he welcomed its release. However, "there are many important questions that this memo does not address," the senator added.

"It is my hope that making this memo public will generate new pressure for the executive branch to answer other pressing questions. For example, how much evidence does the president need to determine that a particular American is a legitimate target for military action? Or, can the president strike an American anywhere in the world? What does it mean to say that capturing an American must be ‘infeasible’? And exactly what other limits and boundaries apply to this authority?" Wyden asked.

Despite the brief discussion of the Fourth Amendment issue, it is hard for a couple of reasons to say with certainty that it was treated in a cursory way. First, the opinion (posted here) cites an earlier memo discussing the constitutional question. That memo is still secret, though it appears the discussion of the issue was only about three pages in that instance as well. Second, there are several chunks redacted from that portion opinion made public by the court Monday, so it is difficult to fully assess the flow of the facts and argument. (In another part of the opinion, about 10 pages were deleted in their entirety.)

Al-Awlaki was killed in a CIA-led drone strike in Yemen on Sept. 30, 2011, about 14 months after Barron signed the opinion released Monday.

The Obama administration fought release of the memo in lower courts and at the 2nd Circuit, but relented after the appeals court ruled in April that the bulk of the memo had to be disclosed. The administration could have sought a rehearing by the full bench of the appeals court or filed a petition at the Supreme Court, but elected not to do so. That decision became public last month as Barron's nomination to serve on another appeals court, the 1st Circuit, was facing a key vote in the Senate. He was ultimately confirmed, 53-45, on May 22.

UPDATE (Monday, 2:26 P.M.): This post has been updated with comment from Wyden.